Volume 31, Number 1

NATIONAL SECURITY LAW: MORE QUESTIONS THAN ANSWERS

Hon. David B. Sentelle

The terrorist attacks on the United States on September 11, 2001, the reactions to those attacks, and more recently the armed conflict in Iraq have raised, or more accurately raised anew, a host of questions concerning the law of national security. Because I think the bar and especially the bench and the legal academy should be thinking about those questions, I am going to raise many of them for your thoughts and discussion, but I will not attempt to answer very many of them, both because the answers may not be fixed, and because I want to retain the openness necessary to deal with them should I confront them in an Article III context. Nonetheless, I want to offer them up for your consideration. The first question: Is national security law really law? Many cynical students and observers of law and politics would say no. That is, they would assert that what we call national security law is simply a fig leaf, or a collection of fig leaves to cover whatever the political branches decide to do in the name of national security or national defense, hiding the fact that national security law is really not law at all. Moreover, cynics would contend that it is just a collection of ad hoc policy decisions with essentially post hoc declarations of discretion and vague references to inherent authority, rubberstamping—either through the courts or policy announcements of one sort or another—providing titular legitimization for whatever the President or the congressional majority (or sometimes minority) intended to do from the very beginning. The cynical view undermines—at least in the field of national security—the American fundamental concept that ours is a government of laws and not men—a government of principles and not whim, arbitrariness, or caprice. I disagree.Read Article

LIABILITY OF ACCOUNTANTS FOR NEGLIGENT AUDITING: DOCTRINE, POLICY, AND IDEOLOGY

Jay M. Feinman

The collapse of the Enron Corporation was spectacular for its scale and its suddenness—$70 billion of shareholder value, held by Enron employees in their 401(k) plans and by other working people through their pension plans and mutual funds, as well as by other individual and institutional investors, wiped out in less than a year. After the collapse came the inevitable accusations, many leveled at Enron’s accounting firm, Arthur Andersen L.L.P., for scheming with Enron executives to set up the rococo structure of off-the-books partnerships and other accounting gimmicks that concealed Enron’s implausible and ultimately untenable financial condition, and for reporting nothing amiss in its annual audits of Enron’s financial statements. When Enron restated its earnings for the past five years to recognize $600 million in losses, the irony of Andersen’s prescribed assurance that the Enron financial statements it audited “present fairly, in all material respects” the company’s financial condition was only surpassed by the near self-parody of the firm’s maxim taught to firm founder Arthur Andersen by his Norwegian mother: “Think straight, talk straight.”Read Article

PULLING SKELETONS FROM THE CLOSET: A LOOK INTO THE WORK-PRODUCT DOCTRINE AS APPLIED TO EXPERT WITNESSES

Charles W. Ehrhardt & Matthew D. Schultz

Your medical or vocational expert is battling an intense crossexamination. Opposing counsel asks, “Dr. Caligari, you were hired in this case by my colleague and opposing counsel attorney Jones were you not?” “I was,” replies your expert. “And did attorney Jones furnish any documentation to you summarizing the facts of this case or setting forth his opinions about the subject of your testimony?” May you object at this point? On what grounds? Before you answer, you should consider whether this exchange occurred during trial or deposition, during a civil or criminal case, and whether in a state or federal court action; for the grounds and validity of your objections may depend upon all of the above. This brief Article explores the potential for discovering pretrial or revealing on the stand any fact and opinion work-product materials that you or your opponent might have supplied to an expert witness. Though Florida courts have broached the subject, it has received cursory and, in our view, insufficient analysis with accordingly dubious results. There are sound arguments that both fact and opinion work-product transmitted to experts may not only be revealed during trial, but may be discovered beforehand, despite contrary authority from the Florida courts. We hope, at a minimum, to alert you to some interesting and potentially devastating possibilities.Read Article

EMBRYONIC DISCOURSE: ABORTION, STEM CELLS, AND CLONING

Janet L. Dolgin

Two debates, one about abortion and the other about embryonic stem cell research and therapeutic cloning, are being conflated in social and legal discourse. The two debates resemble each other. Within each, society has fashioned a context for discourse that allows people to entertain and dispute the scope of personhood and the parameters of community. Moreover, public disagreement within each debate has focused around the meaning of the term embryo.Read Article

DUBIOUS MEANS TO FINAL SOLUTIONS: EXTRACTING LIGHT FROM THE DARKNESS OF EIN FÜHRER AND BROTHER NUMBER ONE

Román Ortega-Cowan

The Nazis used a legal system to commit genocide; the Khmer Rouge did not. What may seem an insignificant statement, considering the horror of the end results has often overshadowed any focus on methodology, in fact holds the key to a better understanding of humanity’s greatest evil. Exploring both the fact of this difference as well as the reasons for its existence presents a focus on the roots as well as the branches, maximizing comprehension of the greater problem of genocide. Analysis reveals the differences were based on disparity in ideology as well as diversity of enemy, and the striking similarity of the horror caused despite such differences.Read Article

THE FINAL FRONTIER OF YOUNGER ABSTENTION: THE JUDICIARY’S ABDICATION OF THE FEDERAL COURT REMOVAL JURISDICTION STATUTE

Daniel C. Norris

Younger abstention is one of several abstention doctrines that the federal courts have used to refuse to hear cases that properly fall within their jurisdiction. Ever since the humble beginnings of the Younger abstention doctrine in 1971, the United States Supreme Court has engaged in a subtle and steady expansion of the scope of the doctrine. While the roots of the doctrine are found in the criminal law context, the Court has steadily moved towards the full application of the doctrine in the civil law context. The Court assured us at each stage of expansion that it would not take the next steps in this progression toward full application of the doctrine across-the-board. Nevertheless, the Court has quietly and subtly transmogrified what was once a limited doctrine of abstention into an immense and impermeable legal construct predicated on dual sovereignty and enforced at the expense of federal law and the Constitution of the United States.Read Article

LEAVING NO STONE UNTURNED: USING RICO AS A REMEDY FOR POLICE MISCONDUCT

Michael Rowan

A little over a decade ago, the videotaped beating of Rodney King merely confirmed what many Los Angeles residents had long since determined—the Los Angeles Police Department (LAPD) was a corrupt, racist, and even brutal police force. For the rest of the country, however, there was a search for some way to explain something that, until then, people could all too easily ignore—for the millions of Americans who had never been on the wrong side of the thin blue line, police misconduct was someone else’s problem. Now, however, people could hardly flip through the channels fast enough to avoid the image of four white police officers repeatedly clubbing an unarmed black man. And then, of course, there were the riots. For a short time, national attention was focused on the issue of police misconduct. It became, in a sense, everyone’s problem.Read Article